lawsuits

City Moves to Ban E-Cigarettes Despite Lack of Complaints About Their Use

Last Month, the San Leandro City Council was set pass amendments to the City’s anti-smoking ordinance, as part of the consent calendar, that would prohibit the use of e-cigarettes to consume tobacco or marijuana everywhere where tobacco smoking cigarettes is prohibited today. The ordinance also included a ban of smoking medical marijuana in private residences and after complaints by citizens Mayor Stephen Cassidy decided to take it off the agenda and bring it back, in an amended format, some time this month.

The staff report that accompanied the amendments to the anti-smoking ordinance provided very little justification for the e-cigarette restrictions, saying basically that City staff had seen people using e-cigarettes in city property and that there are health concerns about e-cigarettes. It cited no studies nor records of complaints.

In order to ascertain whether the use of e-cigarettes is a problem in San Leandro, I filed a California Public Records Act (CPRA) request for:

Any record of any complaint by any person filed or made to the City, City staff and/or the San Leandro Police Department concerning smoking of cigarettes or marijuana, or the use of e-cigarettes or other vaporing devices.

I limited my request for complaints filed from 2012 inclusively to the present, as e-cigarettes have become popular mostly in the last couple of years and the City is very slow in fulfilling long CPRA requests.

It turned out, however, that my search only originated three records detailing five complaints of smoking made to City staff and Police from 2012 to 2014. Four of these concerned cigarette smoking in apartment buildings. The remaining complaint was about a man smoking marijuana in a bathroom stall at the Main Library. There were no complaints whatsoever concerning e-cigarettes or marijuana smoking in multi-unit housing.

The lack of complaints about the use of e-cigarettes, coupled with the absence of scientific evidence on the dangers of “second hand vapor,” puts the City in legal peril if it approves the ordinance without further consideration. To pass Constitutional muster, any ordinance or law must be “rationally related” to a “legitimate” governmental interest. It doesn’t take much to meet this standard, but it does require at least a de minimis consideration of what the government interest is and how the ordinance relates to it. Other cities and states that have restricted the use of e-cigarettes have only done so after holding public meetings on the subject and considering the testimony of experts and members of the public. If San Leandro moves forward with the ordinance without doing the same, it risks a protracted and expensive legal battle to defend its ordinance. E-cigarette companies have already taken note. The log of CPRA requests published in the last City Manager’s newsletter indicates a request for the staff report on this ordinance made by a research analyst at MultiState Associates, a lobbying firm that works for the e-cigarette industry.

Even if the City finds a rational basis to restrict the use of e-cigarettes for consuming tobacco, it should not extend the restrictions to the use of the devices to inhale medical marijuana. E-cigarettes give medical marijuana patients an easy to use, discreet and safe way to take the medicine they need for pain management or other relief. The ordinance as it stands would stop them from using an e-cigarette to take medical marijuana in any public place or place of work – thus forcing patients to go back home or go to the sidewalk. Given the absolute lack of complaints about the use of e-cigarettes, there seems to be no moral justification for adding this burden to people who are already ill.

At the next closed-session meeting of the City Council, the Council will be briefed on a number of lawsuits against the City making their way through the court system. While they are not the totality of the lawsuits affecting the City, it’s useful for citizens to know what their City’s legal team is spending taxpayer money fighting.

Police Abuse Lawsuits

A man was a victim of road rage, so he went home and called the SLPD. When the police came, they found him on his porch talking to a friend. So what did the Police officer do? Take a report, you say? Why no, of course, not, this is San Leandro. Instead Police officer Ann O’Callaghan parked across the street, drew her gun, called the plaintiff over and handcuffed and searched him. Only then he was allowed to file a report. Also involved in this case, was SLPD officer John Kritikos.

The City’s defense? A bunch of affirmative defenses, including “assumption of risk”. Apparently, if you call the Police to report a crime against you, you consent to being handcuffed and manhandled.

Unfortunately, there have been several incidents like this one, where a witness or victim calls the Police, and they end up becoming the victims of police abuse. I reported on a similar case last year, and two more people reported similar experiences on my Facebook page.

This is a lawsuit against Rite Aid on McArthur by a couple of patients who brought a prescription for a controlled substance. For whatever reason, the pharmacists thought it was fake or stolen and they called the police. The patients were arrested, spent the night in jail, had to post bail and one even lost her permit to drive an ambulance. It turned out, however, that the prescription was real. The plaintiffs are suing Rite Aid and SLPD, the latter for false arrest.

So, what can we learn from this? First, use the Rite Aid pharmacy at your own risk. Seriously, prescriptions usually come with the Doctor’s telephone number. If the pharmacist suspected something was wrong, they could have called the doctor. Instead, they subjected two innocent women to jail and more due to their own incompetence and even malice. I don’t shop there often, but now I’m just going to avoid it.

But SLPD is just as much to blame. They, too, could have called the prescribing doctor. If they couldn’t get a hold of him, they could have gotten the women’s information, and arrested them once they confirmed the prescription was false. Instead, their defense is: the pharmacists told us that it was fake, and we believed them. Ace investigators, there.

Early in 2013, the plaintiff was driving near the border with Oakland when he was stopped by SLPD. An officer told him he was stopped for “moving in his car”. The officers asked him to step out and asked him if he had any drugs or guns, the plaintiff said he didn’t. Officers proceeded to search the car, even though they had no probable cause for doing so and the dispatcher told them that while the plaintiff was on probation, there was no search clause. The SLPD officers took the plaintiff’s ID, and did not return it.

Fortunately for the City, the plaintiff has filed this pro se and doesn’t seem to know what he is doing. I say fortunately, because the judge made it clear that the plaintiff would have to show that it was the City’s policy to violate people’s rights in this way, in order to prevail against the City itself. A lawyer may very well be able to do so. AFter all, the SLPD itself has issued press release after press release that indicate that a car was stopped and searched with no probable cause.

Who knows, maybe a lawyer will read this and reach out to the plaintiff.

The case is 4:2013cv02302 filed in CA northern district court.

Clean The Drain! Lawsuit

This case concerns a downhill storm drain that goes through the plaintiff’s property. The plaintiff says the City is responsible for maintaining it, but it hasn’t been doing so, so it gets plugged and the overflow from the drain flows into the plaintiff’s property.

It seems the city has two choices: it can clear the damn drain or it can engage in an expensive lawsuit to find out whether it has the legal obligation of clearing it or not. What has the city chosen to do? Fight it in court, of course.

This is the type of thing for which I think we require clear answers from our politicians. I’ve asked Mayor Stephen Cassidy to tell us how much it would cost to keep that drain (or even all drains in public property) in San Leandro unplugged, and how much it has cost to fight this case in court for now over two years. He responded that I should find the information myself – apparently, he doesn’t know or care to find out.

Slip-And-Fall Lawsuits

Two of the lawsuits concern falls due to badly maintained sidewalks. Alas, they both seem to be in private property.

Last year, the City settled a slip-and-fall lawsuit regarding a faulty sidewalk for $5K, but only after litigating it in court for over a year. The legal costs are probably many times that of the settlement.

We Need Social Workers, Not Police Lawsuit

The last lawsuit the Council will consider, filed last December, is more interesting for its social aspects than its legal merit. First of all it serves as a reminder that nobody should file a lawsuit without having someone who is able to read/write High-School level English, read it over. As it’s written, it’s pretty much incomprehensible.

But the documents filed with the lawsuit – which are confidential and shouldn’t have been entered into the record, and for that reason I’m not linking to the lawsuit -, also speak about the failure of our educational system to identify children with mental disabilities, and of our social welfare system to provide needed support to families with such children.

The case will be dismissed, most likely, the social problems remain.

Also in the Legal Pipeline

– A liability claim filed by Guy Dilling form the Santos Robinson Mortuary against the City, I’m filing a CPRA request to find out what it’s about.

–Ilmberger VS City of San Leandro Apparently, in early 2013, the roots of a city-owned tree blocked the City-owned sewer line on Graff Ave., making the sewage from the plaintiff’s lateral line back up into their home.

– City apparently just won an appeal on a case where a paving company had sued it because it wasn’t awarded the contract .

Is High School Teacher SLPD’s latest victim?

Earlier this week, the San Leandro Police Department issued a press release announcing the filing of charges for “possession of child pornography” against Rick Styner, a teacher at San Leandro High School. In one day, the reputation of a man that, by all accounts, had been honorable and respectful of his students, has been destroyed, possibly beyond repair. I don’t think any of us can imagine the social opprobrium the Styner family is experiencing right now. And yet, a careful reading of the facts as reported in the news stories do not show any actual criminal conduct by Styner. Regardless of what happens to the charges, whether they are dismissed or whether Styner is tried and found innocent, his life and career has been ruined by Chief Sandra Spagnoli and the San Leandro Police Department. And he is not the only one.

False Arrests at Marina Park

Last year, the SLPD issued another press release, featuring the pictures of two older men and accusing them of loitering around the bathrooms at Marina Park to solicit men for sex. The community reacted immediately, calling these men every name in the book and instantly assuming they were guilty. Even I, while arguing that their conduct was not a crime unless they actually intended for someone else to unwittingly witness a sex act, assumed that the basic facts of the press release were true: the men were hanging out around the bathroom hoping to pick up other men for sex. I was wrong in making that assumption. Simply put, the SLPD’s press release was a lie.

The lie was most egregious in the case of Michael Woody. Woody had stopped at the parking lot near the Marina Park bathrooms with the intention of using the facilities for their intended purpose. An undercover SLPD officer was loitering around and tried to engage Woody in conversation. When the officer followed Woody into the bathroom, Woody became understandably uncomfortable and decided to leave. The officer followed him to his car and arrested him as he was turning on the engine. Woody had never indicated any interest in engaging with the police officer on any activities. No charges were filed against him.

Steven Mengel, on the other hand, did show interest when a twenty-something plain-clothes officer Matthew Barajas approached him as he was sitting inside his car, parked in a public street, and propositioned him. They made a date to meet the next day at noon near the bathrooms. When Mengel arrived, Barajas showed up with a “friend”, now identified as Sargent Brian Anthony. They agreed that Anthony would serve as a “look out”, making sure nobody came, while Mengel gave Barajas a hand job in the bathroom stall. Before he had the opportunity to do so, he was arrested.

As I mentioned after the men’s arrest, California law only criminalizes sexual conduct in public, when it’s done under the reasonable belief that it could be witnessed by others who would be offended at the sight. Clearly, that was not the case in this case as officer Anthony’s “job” was precisely to make sure that nobody would witness the act. Disregarding the law, the SLPD officers not only arrested Mengel but they issued a press release falsely accusing him of loitering with the intent of engaging in illegal acts. He was actually charged with this offense – which suggests to me that we should give little credence to any charges the Alameda County District Attorney levies against anyone -, but the charges were dismissed by the court.

Unfortunately, it will ultimately be San Leandro residents that have to pay for the SLPD’s misconduct – the city has been hit by a class-action lawsuit filed on behalf of Mengel, Woody, and all other men who have been subjected to similar actions by the SLPD. While the lawsuit does not specify an amount for damages, similar lawsuits have resulted in settlements in the six and seven figures. So much for Mayor Cassidy’s argument that the City should give Chief Spagnoli a raise because she would save the city money on lawsuits.

The Styner Case

(Update: the actual court documents in this case show that the charges are bogus).

What happened in the Marina Park should warn us against jumping to conclusions on the Styner case as well. Indeed, a close examination of the facts on this case show that it’s not only weak but suspicious.

Rick Styner is a Computer Science teacher at San Leandro High School. On April 16, he was teaching his class how to transfer files between devices, when he accidentally clicked on a file in his dropbox folder, opening a nude photograph of himself. The police have not described this photograph, but according to what a student of Styner’s wrote on Facebook, it actually focused on the tattoos that Styner sports on his thigh – he gets one after he completes a marathon -, and only incidentally showed his genitalia. *Update*. After writing this part I looked through Styner’s facebook page and found a picture of the tattoo. It’s actually on his right hip, and while this particular picture is cropped, it’s reasonable to believe that the original might have shown part of his genitalia and might have been the one the students were exposed to. It’s clear that the purpose of this picture was to show off the tattoo. Styner got it in August 2012; the little balls signify the marathon’s he’s completed, the number signifies the distance of the marathon (26.2 miles) and the phrase means “will run” in a Tolkien language.

Immediately after this incident, Styner notified the school authorities and surrendered his school-issued laptop computer. An unidentified school district employee proceeded to look through the computer where s/he allegedly found material that s/he considered to be disturbing. The district notified the police, without first notifying the School Board.

The material in question seems to mostly consist of written erotica and is fully protected by the first amendment. According to news reports, one of these stories concerned incest between two teenage siblings (update, this story appears to be “Flowers in the Attic” by V.C. Andrews) , and it included a naked picture of a woman who looked like she might be underage. The Police has not said whether they have identified the woman or confirmed that she is, indeed, underage. The picture has not otherwise been described, so we don’t know if it is actually pornographic (not all naked pictures of minors are; “Pretty Baby” can still be shown in theaters in California even though it shows a naked, pre-pubescent Brooke Shields. Did you click on that last links? You are now in danger of having the SLPD arrest you for possession of child pornography.).

The police have also not stated whether the story had actually been authored by Rick Styner, or whether he had downloaded it. If the latter, the police must show that Steiner actually knew the story contained a pornographic picture of an underage girl. After all, it’s extremely common for people to download large story collections, and not necessarily read or examine every single one. It’s also very easy to unwittingly receive material – specially via a dropbox account – that one did not seek or is aware of. And it’s not always easy to be able to tell the age of a model by her picture alone, much less determine whether the picture is actually pornographic. Is this picture of Brooke Shields child pornography? You tell me – but if you look, beware that the picture will be downloaded to your computer and you’ll be potentially just as guilty of possessing child pornography as Rick Styner. Which is likely, not at all. “Possession of child pornography” is an intent crime, so unwittingly downloading pictures that you don’t know to be pornographic is not a crime.

My personal feeling is that if Styner was, indeed, interested in child pornography, there would have been hundreds of child porn pictures in his computer, not just one of someone who looks like she may be underage and who is not apparently engaged in actual sexual conduct.

The second charge against Rick Styner is even more bizarre. He is accused of going into the home of a friend, who had given him the key, and taking pictures of her underwear and running clothing. He is also accused of putting the picture of the woman’s head on pictures of naked bodies. Apparently, he also took something from the woman’s home, which the police would not identify.

Now, I understand that the Police is trying to suggest that he took pictures of the clothing because of some weird sexual kink – but I find it interesting that the pictures also included the woman’s running gear. Could it be that Styner – a marathoner – was actually more interested in the brand and style of the clothing? I don’t know if he actually removed an item of clothing from his friend’s house – the police has shown that it’s not above lying in print and they might have made this up so that they can charge him with burglary -, but could it not have been for a similarly innocuous reason, such as showing it to his wife to see if she’d like one like it?

As for the photographs – putting someone’s head on someone else’s body, however disturbing, is definitely not a crime, which begs the question of why the police would make such a big deal about it.

I have not personally met Rick Styner – though he is a facebook friend of this blog -, and I have no insight into who he is. I do know, however, that when I googled him, what I first found about him (other than stories on these charges) were stories about how when SLHS teachers were protesting having to put anti-LGBT-bullying posters on their classrooms, Styner said he would put two. Given the clear anti-LGBT bias that the SLPD has shown, and which still lingers at the school district, it makes me wonder if there could be a connection there.

In any case, so far it does not appear that Rick Styner has committed any crime, at least no more than what I did when I googled images of “Brook Shields Pretty Baby” and automatically downloaded several of her underage and naked into my computer. Then again, I would not be surprised if the SLPD was knocking at my home next.

HOA Misses Deadline for CEQA Lawsuit on Halus Wind Turbine

For the last half a year or so, the Heron Bay Homeowners Association has been threatening to sue the City of San Leandro if it approved the variance requested by Halus Power Systems to install a single wind turbine on an 80-foot tower on its property. Halus is on the business of refurbishing wind turbines and wants to be able to do on-site research and testing. The Zoning Code requires that a property owner get a variance to erect any structure over 60 ft of height.

Heron Bay is a planned community resting on the site of a former ammunition factory across the creek from the industrial area where Halus is located. It counts among its neighbors a PG&E substation, a salvage yard, a sewer water treatment facility and various industrial buildings. When built, the turbine will share the skyline with massive electrical transmission towers, cell phone towers and cranes.

The HOA’s objections to the turbine have ran the gamut from then-HOA President and now Council Member Benny Lee‘s argument that it would acerbate his wife’s migraines to the fact that it will cast a shadow over some Heron Bay homes after 8:30 AM on December 21st of every year. Their main complaint, however, has been that the turbine is “ugly”.

The California Environmental Quality Act (CEQA) requires cities to evaluate the potential substantial environmental effects of any project they are asked to approve. The main concern on this case was the potential danger the turbine might cause to the birds that inhabit or visit the nearby wetlands. Halus commissioned a study on this very subject from a premier environmental consulting firm with a lot of experience working on the San Leandro shore. It concluded that the turbine would pose only a minimal risk to birds (about one bird death every six years or so). The California Department of Fish and Wildlife suggested how to further minimize the dangers but otherwise had no objections to the project. The City carefully evaluated this and other potential environmental effects, and found there was no substantive evidence to suggest that any such effect would be substantial. It prepared a mitigated negative declaration to this effect. On February 7th, the Board of Zoning Adjustments approved the variance and on February 8th the City filed a Notice of Determination (NOD) with the County Clerk approving the project.

The Heron Bay HOA appealed the BZA decision to the City Council. On April 1st, the Council voted 5-1 in favor of the variance. The HOA, however, continues threatening a lawsuit, apparently not realizing that their chance had passed. Under CEQA (PRC §21167 (b)), any litigation “alleging that a public agency has improperly determined whether a project may have a significant effect on the environment” must commence within 30 days from the date the NOD is filed. That is to say, if the HOA wanted to challenge the City’s finding that there was no need for an Environmental Impact Report on this case, it had to file its lawsuit by March 10th. It did not, so it would seem that the HOA is out of luck.

It’s not surprising that the HOA missed that particular deadline. Throughout this process they were represented by an attorney that specializes in HOA law and not in CEQA law. That’s like asking your podiatrist for advice on heart problems. And this is a somewhat tricky legal matter. Normally, decisions by the BZA must be appealed to the City Council before they are ripe for litigation. And that’s true in this case of the BZA’s decision to grant Halus a height variance. The Heron Bay HOA can potentially challenge the variance decision in court, as long as it finds grounds to do it other than CEQA. It seems unlikely that they will, and they certainly will not be able to do it without first spending considerable amounts of money to document any actual harm they have incurred.

This is probably a blessing in disguise for the Heron Bay HOA, however. A relatively new law (PRC §21169.11) allows courts to impose sanctions of up to $10,000 for frivolous claims on the parties or attorneys that make them. Given the claims advanced so far by the HOA, a lawsuit could quickly empty their bank account – and their lawyer’s.

The Heron Bay HOA’s appeal to the City Council specifically challenged adoption of the Mitigated Negative Declaration (MND) and was timely filed. As a result, the first 30 day Statute of Limitation from the BZA actions stopped running. Following the April 1st City Council public hearing, the City filed the CEQA “Notice of Determination” for the appeal on Tuesday afternoon- April 2nd . Therefore, a new 30-day Statute of Limitations began to run for challenging the MND from the April 2nd date.

CEQA, however, does not have any provisions to stop the clock on the status of limitations. Indeed, Courts have repeatedly ruled that it starts running from the moment the project is initially approved. And the California Supreme Court has been stated very clearly that filing a NOD triggers a 30-day statute of limitation for any litigation to be filed, even if there are problems with the NOD. So far the Court has not carved any exceptions.

The Fifth District Court of Appeals, however, did recently find that when a Notice of Exemption (NOE) to CEQA is improperly filed prior to the project actually being approved, that notice is invalid and the statute of limitations does not start running. William’s argument might fit within this analysis, given that NOEs are quite similar to NODs. At the very least, it seems that if the Heron Bay HOA appeals, the City will not assert the statute of limitations as a defense.

Halus, however, may still chose to do so. After all, the Fifth District’s decision is not binding on the First District (ours) and there is concern among CEQA practitioners that it does not jive with the Supreme Court decision referred to above. Moreover, it is not at all clear that the City’s argument that the BZA’s approval of the project was not final, and that therefore the February NOD was improper, has merit. Without a specific ordinance codifying the CEQA appeals process, the nature of the City Council’s review is an open question.

However, given the City’s position, it may not behoove Halus to assert the status of limitations, as the law is murky enough on this matter that if Halus wins, the HOA could appeal turning this into an expensive legal battle. It would seem that responding to the suit on the merits could be a better strategy. After all, the “evidence” of environmental effects submitted by the HOA was so poor that it should not be difficult for Halus’ and the City’s attorneys to argue that both the HOA and its attorney should be sanctioned for making frivolous claims. CEQA provides for an objective test of what constitutes a frivolous claim and does not require bad faith, so the question the Court will entertain is whether a reasonable attorney – not the attorney actually representing the HOA – would believe the claim is totally without legal merit. If they press on their claim that a couple of hours of wind turbine shadows one day a year constitute a substantial environmental effect, I’m pretty sure the Court will not be amused at the waste of its valuable time.

Today (Oct. 3, 2011), the US Supreme Courtdenied certiorari on the City of San Leandro vs. Faith Fellowship case. As it is its practice, the Supreme Court did not provide a reason for this denial. What this means is that if this case it’s not settled, it will go on to trial. The jury will then have to decide basically whether the Church could have acquired another property in a residential-zoned area of San Leandro that would have suited their purposes. Former city manager Jermanis said in his deposition that it couldn’t. In my opinion, it’s quite likely that the Church would win.

The question now is one of damages. How much would the Church be awarded if it went to trial, and how much should the city offer to settle for so as to avoid going to trial. Previous statements by the Church, suggest that they’ll be asking for as much as $3.7 million in damages, the $1.2 million they paid in mortgage payments while the owned, but could not occupy the Catalina St. property, and the $2 million they lost when they finally had to sell it. To that we should add the Church’s attorney fees, which could be in the hundreds of thousands of dollars (the City of San Leandro itself has spent about $600,000 on this lawsuit).

The city has an ace up its sleeve, however. Quoting from a previous post: “it is not clear that RLUIPA [the Religious Land Use and Institutionalized Persons Act, under which this case is being fought] allows for money damages. While some courts have found that it does, following the Supreme Court’s reasoning in Franklin v. Gwinett, the US Supreme Court just ruled in Sossamon v. Texas (a case involving prisoners’ religious rights) that the phrase “‘[a]ppropriate relief’ is open-ended and ambiguous about what types of relief it includes” and that, at least in the case of lawsuits against states (which, unlike municipalities, enjoy sovereign immunity) it should not be interpreted to include monetary damages. Now, because the Sossamon court ruled on very specific circumstances, it’s not clear how lower courts will interpret the decision. They may very well conclude that it would be inconsistent to read RLUIPA’s grant of “appropriate relief” to include monetary damages when the state actor is a municipality or county, but to not include them when the actor is a state. Or they may decide that the fact that Supreme Court specifically differentiated Sossamon from Franklin means that Franklin applies to non-sovereign RLUIPA defendants.”

This means that while the city has almost certainly lost the case, the matter of how much – if anything – it will have to pay Faith Fellowship is still in the air. The city could chose to try its chances at a trial and, if it loses (as it’s likely), fight the question of monetary damages. It once again can go up the appellate ladder all the way to the US Supreme Court. This would certainly please Meyers Nave, the city’s law firm, which has raked in millions of dollars out of the bad advise it’s given the city. Another series of trials and appeals could mean hundreds of thousands of dollars more in their pockets.

The realistic threat of further litigation, which would mean not getting a final settlement for several more years, if at all, might make Faith Fellowship more willing to settle for a reasonable sum. Of course, pursuing settlement options would have been a better choice back in February before the 9th circuit and the Supreme Court said “no” to the City, now Faith Fellowship has much less to lose. But money with which they could buy a new property now is better than money a few years from now.

Whether the city decides to settle or go to trial, I can only hope they will finally do the smart thing and hire a /new/ law firm to represent them. Meyers Nave terrible advise on this case will most likely end up costing the city millions of dollars, and truth be told, we cannot afford to keep taking their advise.